Aldrich, et al v. Dretke, et al

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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United States Court of Appeals
Fifth Circuit
F I L E D
December 1, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 03-50361
DONALD LOREN ALDRICH,
Petitioner-Appellant,
VERSUS
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Western District of Texas, San Antonio Division
(SA-99-CA-171-IV)
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Donald Loren Aldrich (“Aldrich”) filed an application for
federal writ of habeas corpus in the Western District of Texas. On
February 24, 2003, the district court entered a judgment denying
his petition for writ of habeas corpus and refusing to issue a
certificate of appealability (“COA”). Aldrich subsequently filed

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with this court seeking a COA. We deny his request.
I. BACKGROUND
Aldrich was convicted of capital murder and sentenced to death
on August 9, 1994 for the November 30, 1993 murder of Nicholas
West. On November 30, 1993, Aldrich and two friends decided to go
“queer-bashing,” using procedures similar to those they had
employed at least twice in the past to rob and assault persons they
believed to be homosexual.
The three of them drove to Bergfeld Park, which they believed
to be a homosexual meeting spot in Tyler, Texas, where they robbed
Nicholas West at gunpoint. After robbing West of his money and
vehicle, they forced him into their automobile and drove to a
remote area of Smith County. They then forced the victim to walk
up a hill, where Aldrich and another one of the assailants shot him
at least nine times with two .357 handguns. Aldrich fired at least
three shots into the victim.
After a change of venue from Smith County, Texas, to Kerr
County, Texas, Aldrich was convicted of the murder of Nicholas
West. Following a separate punishment hearing, the trial court
sentenced Aldrich to death. Aldrich appealed to the Texas Court of
Criminal Appeals, which affirmed his conviction and sentence. See
Aldrich v. State, 928 S.W.2d 558 (Tex. Crim. App. 1996). Aldrich
then petitioned for state habeas relief, to no avail.

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Aldrich initiated federal habeas proceedings on June 16, 1998.
On February 24, 2003, the district court entered a judgment denying
Aldrich’s petition for writ of habeas corpus and denying Aldrich a
certificate of appealability. Aldrich timely appealed.
II. STANDARD OF REVIEW
The Anti-Terrorism and Effective Death Penalty Act (AEDPA)
states that federal habeas petitioners must demonstrate that the
state court’s adjudication was either “contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States,” or “resulted
in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d).
To obtain a COA, the petitioner must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by demonstrating
that jurists of reason could disagree with the district court’s
resolution of his constitutional claim or that jurists could
conclude the issues presented are adequate to deserve encouragement
to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003).
III. ANALYSIS

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A. Basis of Aldrich’s Claims
At the penalty phase of the trial, the jurors were charged
with answering certain questions to determine whether Aldrich would
be put to death or given a life sentence. The threshold question
was whether, if not sentenced to death, Aldrich would probably
“commit criminal acts of violence that would constitute a
continuing threat to society.” TEX. CODE CRIM. PROC. ART 37.071, §
2(b)(1). The jury found, beyond a reasonable doubt, that the
answer to this question was yes.
Aldrich offered evidence to show he would not be violent in
prison, mainly by showing his nonviolent prison record. The
prosecution argued that, because Aldrich’s chosen victim pool
consisted of homosexuals, he would be likely to perpetrate violent
crimes against homosexuals in prison. The jury was also shown the
unedited version of Aldrich’s videotaped confession in which he
confessed to his participation in multiple violent crimes.
Aldrich’s bases for appeal here surround the possibility that,
if not sentenced to death, Aldrich would have been eligible for
parole in 35 years and thus could theoretically constitute a danger
to society beyond prison. Texas does not have the option of life
without the possibility of parole. During the closing argument by
Aldrich’s attorney at the penalty phase, the following exchange
occurred.
Defense: You’re not going to have to worry about Mr.

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Aldrich being on the streets of Kerrville....
You’re not going to find him here, because
he’s going to be in prison with a life
sentence at least, okay. So when you’re
defining who he’s going to be a danger to, you
don’t have a choice. You have to define where
he is and he’s going to be in prison.
Prosecutor: Judge, I’m going to object to that. That’s
outside the record and incorrect. I object to
it.
Court: I’ll sustain the objection.
Defense: Which part of it, Your Honor? We feel like we
have a right to argue he’s going to be in
prison for life.
Court: I think you’ve got a right to argue that he’s
going to be in prison.
Defense: All right.
Prosecutor: My objection is, he’s standing up there
arguing to the jury that he’s going to be in
prison for life. That’s my objection.
Defense: It’s a life sentence, Your Honor.
Court: There’s a difference between a life sentence.
I’ll sustain the objection as to being in
prison for life. A life sentence, yes. You
can talk about that.
Defense: He’s going to be in there for a life sentence.
I’m going to state this the way that [the
prosecutor] and the Court asked me to. You’re
not going to have to worry about him. People
of Tyler and Smith County are not going to
have to worry about him....
Thus, defense counsel at trial attempted to argue that Aldrich
would necessarily be in prison for the rest of his life, an
argument that is incorrect. The court sustained the prosecution’s
objection to this argument, but allowed defense counsel to argue
that Aldrich would have a life sentence. Aldrich also argues that
the trial court prevented him from introducing evidence to show
that he would not be eligible for parole for 35 years, but, as
discussed below, his citations to the record do not support this

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assertion.
B. Aldrich’s Arguments
Aldrich seeks a COA on three closely-related arguments. He
argues that the trial court’s refusal to permit testimony, judicial
instruction, or argument as to his 35 year period of ineligibility
for parole violated his constitutional rights. Aldrich maintains
that this prevented him from (1) meeting or rebutting damaging
evidence in violation of his Fourteenth Amendment right to due
process; (2) bringing evidence to the jury relevant to a death
penalty issue that is mitigating in violation of the Eighth
Amendment; and (3) making a complete defense in violation of his
Sixth Amendment rights. He concedes that the “rubric is basically
the same whether the issue is analyzed as a Sixth Amendment, an
Eighth Amendment, or a Fourteenth Amendment question.”
As Aldrich concedes, his Eighth and Fourteenth Amendment
claims are foreclosed by this circuit’s precedent. See, e.g.,
Tigner v. Cockrell, 264 F.3d 521, 525 (5th Cir 2001). Thus, the
state court’s actions here were obviously not contrary to clearly
established federal law. We need not grant COA because, in light
of this circuit’s precedent, reasonable jurists would not conclude
the issues presented are adequate to deserve encouragement to
proceed further.
But this court has not yet addressed Aldrich’s Sixth Amendment
permutation of this argument. In United States v. Scheffer, the

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Supreme Court stated that state lawmakers “have broad discretion to
establish rules excluding evidence from criminal trials. Such rules
do not abridge an accused's right to present a defense so long as
they are not ‘arbitrary’ or ‘disproportionate’ to the purposes they
are designed to serve.” 523 U.S. 303, 308 (1998). The suppression
of evidence may be unconstitutional where it infringes on a weighty
interest of the accused. Id.
Aldrich argues that, under the Scheffer balancing test, his
weighty interest in introducing evidence that he would not be
eligible for parole for 35 years outweighs the state’s interest in
excluding such evidence regarding parole eligibility. But, again,
Aldrich has not indicated any point in the record in which the
trial court judge prevented him from introducing evidence regarding
his 35-year ineligibility for parole. In arguing that the trial
court prevented him from introducing such evidence, Aldrich cites
to the following: (1) a pretrial motion to set aside the indictment
in which he argued that the Texas capital punishment scheme
violated the federal constitution, (2) an objection to the
punishment phase instructions in which he objected to the charge
not including information about the parole implications of a life
sentence, and (3) the jury charge from the punishment phase which
instructs the jurors not to consider the manner in which the parole
law would be applied.
The pretrial motion regarding the constitutionality of the

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Texas capital punishment scheme clearly fails to indicate that the
trial court judge refused proferred evidence. The fact that the
jury charge didn’t include information about the parole
implications of a life sentence similarly does not indicate that
such evidence could not have been adduced at trial. The jury
charge instructing the jurors not to consider the manner in which
parole law is to be applied is consistent with the then-
longstanding Texas practice designed to prevent jurors, functioning
within the judicial branch, from attempting to anticipate how the
executive branch would apply parole factors, in violation of the
Texas constitution. In arguing that his Sixth Amendment rights
were violated, Aldrich actually attempts to distinguish this
inquiry from simply telling the jury he would be ineligible for
parole for 35 years. In any event, Aldrich still does not indicate
any point at which proffered evidence as to the mandatory 35 year
period of parole ineligibility was rejected by the trial court.
Thus, Aldrich has not stated a basis for a Sixth Amendment claim.
Also, as Aldrich admits, the Sixth Amendment analysis is much
the same as under the Fourteenth and Eighth Amendments, and this
court has consistently stated that a defendant is only entitled to
a jury instruction regarding parole ineligibility if there exists
a life-without-possibility-of-parole alternative to the death
penalty, which does not exist under Texas law. See, e.g., Tigner,
264 F.3d at 525. The argument that this court should develop a

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constitutional rule contrary to these holdings is foreclosed by the
non-retroactivity rule of Teague. Teague v. Lane, 489 U.S. 288
(holding that new rules of constitutional law should generally not
be applied on collateral review).
Thus, Aldrich does not state the proper basis for a Sixth
Amendment claim, and such claim would in any event be barred by
Teague. The state court’s actions here were not contrary to
clearly established federal law. This court need not grant COA
because reasonable jurists would not conclude the issues presented
are adequate to deserve encouragement to proceed further.
CONCLUSION
For the reasons outlined above, we DENY Aldrich’s request for
a COA.
DENIED.

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